Pegues v. State

Appeal
from the Criminal Court for Shelby County No. 12-06111 J.
Robert Carter, Jr., Judge

A
Shelby County jury convicted the Petitioner, Sebastian
Pegues, of two counts of first degree felony murder, one
count of aggravated child abuse, and one count of aggravated
child neglect, and the trial court sentenced him to life plus
twenty years of incarceration. This court affirmed the
Petitioner's convictions and sentence on appeal.
State v. Sebastian Pegues, No.
W2014-00854-CCA-R3-CD, 2015 WL 3404736, at *1 (Tenn. Crim.
App., at Jackson, May 27, 2015), no Tenn. R. App. P. 11
application filed. The Petitioner filed a petition for
post-conviction relief alleging that he received the
ineffective assistance of counsel because his trial counsel
ineffectively cross-examined the medical examiner. After a
hearing, the post-conviction court denied relief. We affirm
the post-conviction court's judgment.

Robert
W. Wedemeyer, J., delivered the opinion of the Court, in
which Thomas T. Woodall, P.J., and Norma McGee Ogle, J.,
joined.

OPINION

ROBERT
W. WEDEMEYER, JUDGE

I.
Facts

A.
Trial

This
case arises from the death of the Petitioner's then
three-month-old stepdaughter. We summarize the facts
presented at the Petitioner's trial. On June 25, 2012,
the Petitioner called 911 to report that he needed an
ambulance for his infant daughter who was breathing slowly.
He expressed fear that the infant was going to die. The 911
operator instructed the Petitioner on how to conduct CPR, and
the Petitioner did so until paramedics arrived.

When
paramedics arrived, the Petitioner informed them that his
daughter, the victim, was having trouble breathing. The
Petitioner said that the victim had been sick, had taken
medication, and was not breathing well. A Paramedic noted
that the victim was "definitely . . . in distress."
He said that he immediately noticed that the victim was
"very depressed like lethargic." He stated that the
victim had a "fixed" look on her face and was not
breathing at a normal rate for a baby. The Petitioner
reported he had given the victim a small dose of Tylenol. The
ambulance arrived quickly to transport the victim, who was
breathing but "deteriorating, " to the hospital.
The victim's heart stopped on the way to the hospital but
paramedics revived her.

Officers
responding to the scene found the Petitioner, the victim, and
a seven or eight-year-old girl. The Petitioner told officers
that he was trying to sleep and that the victim would not
stop crying. He called Ms. Pegues, the victim's mother,
who told him to give the victim some Tylenol to help her
sleep. The Petitioner told the officers that the victim was
having difficulty breathing and that he had given her
medication. Officers noted that the other child in the house,
K.H., who was seven or eight years old, was concerned about
the victim. K.H. told officers that the victim cried a lot,
and it frustrated the Petitioner. K.H. said "something
about a who[p]ping."

The
Deputy Chief Medical Examiner for Shelby County, Dr. Marco
Ross, testified as an expert in forensic pathology about his
findings during the victim's autopsy.

[The
victim] weighed sixteen pounds and was three months old at
the time of the autopsy.

In his examination of the victim's body, Dr. Ross found a
bruise on her right temple consistent with blunt force trauma
to that area. On the back of the victim's head, Dr. Ross
found a hemorrhage, which he explained as an area of bleeding
in the tissue. He testified that there was a similar area of
hemorrhage on the right front part of the victim's scalp.
Dr. Ross said that, after removing part of the victim's
skull, he found a small area of hemorrhage on the right side
of the victim's brain. Dr. Ross identified pictures of
those injuries, and they were admitted as evidence. He stated
that all of the victim's injuries to her head appeared to
be acute injuries, meaning that they occurred within
twenty-four hours before her death. Dr. Ross testified that
it would have taken a minimum of two blows to the
victim's head to create those injuries.

Dr. Ross identified pictures of areas of bruising on the
victim's torso region, specifically her lower chest and
upper part of her abdomen. Dr. Ross testified that he found
injuries on the victim's ribs. The victim's fifth
through ninth ribs were fractured on her right side, and her
third through eighth ribs were fractured on her left side.
The eighth and ninth ribs on her backside, where they attach
to the spine, had "calluses" indicative of older
fractures to those ribs. He testified that the injuries to
the ribs on her right side also appeared to be acute. The
injuries to her left side were a minimum of two weeks old.
Pictures of the injuries to the victim's ribs were
identified and admitted as evidence.

Dr. Ross testified that he could not completely rule out that
the victim's rib injuries were caused by CPR, but he
stated that his interpretation of the injuries was more
consistent with tpressure or impact from the side of the
body, rather than the front, which would be consistent with
CPR. He agreed that the injuries were more consistent with
injuries sustained from blunt force trauma. He testified that
there were hemorrhages in the immediate vicinity of the
fractured ribs consistent with blunt force trauma. Based on
the fracture lines on the victim's ribs, Dr. Ross
testified that the victim had suffered broken ribs during
three different events.

Dr. Ross testified that the victim had suffered bleeding in
her right lung, as well as in her heart. Pictures of the
bleeding in the victim's lung and heart were identified
and admitted as evidence into the record. The presence of the
hemorrhage inside the victim's lung indicated that the
victim had suffered blunt force trauma rather than injuries
sustained during CPR. Dr. Ross testified that the victim had
two lacerations on her liver, which he described as
"complex, " indicative of a "crush type of
injury to the liver." Dr. Ross agreed that it would take
a "significant amount of force" to cause this type
of injury to the liver. He characterized the injuries to the
victim's liver as severe, caused by a very significant
impact.

Dr. Ross testified that the victim also suffered hemorrhaging
to her duodenum, the connection between her stomach and small
intestine, as well as to her pancreas and kidney. He
testified that the victim's adrenal gland was split open
by a large laceration consistent with a severe injury. He
agreed that an adult punching the victim would cause that
type of laceration. Dr. Ross testified that, due to her
internal injuries, the victim had bled at least half of her
blood volume internally.

Dr. Ross testified that he determined the cause of the
victim's death to be multiple blunt force injuries. He
stated that the victim's injuries were very severe and
"associated with a high mortality." He testified
that he typically associated these types of injuries with car
accidents because of the amount of force necessary to cause
the same crushing of the liver suffered by the victim. He
stated that, had the victim been resuscitated, she probably
would have had to have her liver removed to stop the internal
bleeding. He described the injury to her liver as "very,
very severe" and stated that the victim would have been
in severe pain after sustaining these injuries. Dr. Ross
stated that the victim likely went into shock within a matter
of minutes after sustaining the injury to her liver. Based on
the severity of the injuries, Dr. Ross stated that the victim
probably suffered them close to the time that she died.

On cross-examination, Dr. Ross agreed that the victim arrived
at his office with medical equipment on her body, left in
place so that he could ascertain whether any of her injuries
or marks were related to the medical equipment. He clarified
that the temple, where the victim had a bruise, was on the
side of the head between the eye and the ear. He agreed that,
near the injury to her temple, the victim had a mark where
tape had been placed on her head by medical personnel. He
stated that the tape and any piece of medical equipment that
had been taped to her head would not have caused her injury.
Dr. Ross stated that the injuries to the child's liver
and abdomen would have been by someone forcefully squeezing
her abdomen, or punching ...

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